Kaua`i Groups Sue State to Enforce Environmental Review Law

A Kauaʻi-based community group, Ke Kauhulu o Mana, have filed a lawsuit against the State Department of Land and Natural Resources (DLNR) and Syngenta. The suit calls for enforcement of Hawaii Revised Statute (HRS) Chapter 343, which requires an environmental assessment (EA) or an Environmental Impact Statement (EIS) for any significant actions or development proposed on publicly-owned, coastal and conservation-zoned lands. In this instance, the lands in question are located on Kauaʻi’s west side in Mana adjacent to the coast, about three quarters of a mile from the homes and community of Kekaha, and close to the frequent surfing and recreation beach, Targets.

These lands are historically Hawaiian crown lands. According to the state Constitution, these lands are supposed to be held and protected as part of the public trust. The State of Hawai`i as the present caretaker of these lands needs to take that responsibility seriously. We are disappointed that to date, they have failed to do so. We feel compelled to take this legal action to ensure that the regulations designed to preserve and protect crown lands are respected, and that state agencies do their job and enforce those laws.

The plaintiffs are represented by public interest attorney, Lance Collins, who has a wide range of experience with a focus on good government, environmental protection and native Hawaiian law. Mr. Collins has brought a number of successful cases under HRS 343, most recently Kalepa v. Dept. of Transportation and Maalaea Community Assn v. Dept. of Housing & Human Concerns.

“This suit is being filed to ensure that sensitive, coastal, and publicly-owned lands zoned for conservation are given the proper and legally required environmental review prior to being leased out for private commercial use,” said Collins. According to Collins, a thorough review evaluating direct, indirect and cumulative impacts which the law requires, has not been done. The complaint further states that the proposed use of the lands may have significant negative impacts given the anticipated heavy application of Restricted Use Pesticides involved in the industrial farming of crops by Syngenta.

This suit is being filed to ensure that sensitive, coastal, and publicly-owned lands zoned for conservation are given the proper and legally required environmental review prior to being leased out for private commercial use.

— Plaintiffs' Attorney, Lance Collins

Syngenta has announced plans to sell its Hawai'i operations to the Wisconsin-based company, Hartung Brothers. However, media reports also indicate that Hartung Brothers will be contracted by Syngenta to perform the same activities currently conducted by Syngenta employees. Thus the environmental and health impacts will remain similar regardless of the named entity conducting day to day operations.

State agencies must ensure that permittees and leaseholders abide by local regulations and protect public lands

“These lands are historically Hawaiian crown lands. According to the state Constitution, these lands are supposed to be held and protected as part of the public trust,” says Loui Cabebe, a native Hawaian and long time West side resident and representative of the plaintiff group, Ke Kauhulu o Mana. “The State of Hawai'i as the present caretaker of these lands needs to take that responsibility seriously. We are disappointed that to date, they have failed to do so. We feel compelled to take this legal action to ensure that the regulations designed to preserve and protect crown lands are respected, and that state agencies do their job and enforce those laws,” he added.

The complaint states that the DLNR must require and ensure the execution of a full Environmental Impact Statement (EIS) covering the lands currently being used by Syngenta. Based on what is known of the company’s activities thus far, and because of the close proximity of the parcel in question to the ocean and its conservation designation, Syngenta’s use of the land will have significant impacts on the recreational use of the beach and near-shore waters, adjacent reef eco-systems, fishermen, surfers and endangered native species.

Area once considered for park expansion leased instead to Syngenta

In granting Syngenta its permit to utilize the lands the DLNR has stated the action is exempt from the requirements of HRS343 as no significant impacts are expected. The complaint alleges this decision was made based on only a superficial review. That review is woefully inadequate in light of the area’s conservation zoning, its proximity to the coastline and the pesticide-intensive nature of the proposed use by Syngenta. The complaint further points out that exemption to HRS343 was granted even though the Office of Hawaiian Affairs expressed concerns about possible burials in the area and even though Syngenta’s own federal permits indicate much of the work is done in areas that impact critical habitats of rare and endangered species.

The approximately 60 acre parcel comprises section 5(b) lands, which means they are held in public trust for the people of Hawai`i and are subject to native Hawaiian entitlements. The area was previously identified by State agencies as ideal for future park expansion, but is now part of Syngenta’s approximately 3,000 acres of leased, publicly-owned crown lands on Kauai’s west side.

The complaint argues that a full EIS is needed given the scale and nature of the planned industrial farming activities which are distinctly different from the operations of local farmers in several ways. First and foremost, these large scale actions are occurring on state-owned conservation lands situated in a sensitive coastal environment.

The complaint argues that a full EIS is needed given the scale and nature of the planned industrial farming activities which are distinctly different from the operations of local farmers in several ways.

Secondly they involve the heavy application of restricted use pesticides (RUP). Thirdly, night-time activity involving the use of bright lights is known to impact endangered species such as the ‘a’o (Newell’s Shearwater) and ua’u (Hawaiian Petrel). The Kauai Endangered Seabird Recovery Project has reported that between 1993 and 2013, populations of the ‘a’o declined by 94 percent while the ua’u declined by 78 percent. The federal permits held by Syngenta to grow experimental crops state clearly that the activity is occurring in areas where critical habitats for endangered species exist.

The case will be heard in the environmental court on Kaua‘i, presided over by the Hon. Randal Valenciano.